The National Labor Relations Board has added a little more clarity about what employees can and cannot say on social media. But, says Neal Hartman, there’s still a lot of room for interpretation. (AP)

While it seems like issues around social media in the workplace have exploded in recent years, they have actually been around since the dawn of email. Back in those days, employers questioned things like whether they could restrict personal use of work email accounts or limit what was said in emails about the company. Could employees be terminated for breaching a company’s email policy?

Fast forward to today and the questions are strikingly similar: Can employees be fired for tweeting or posting on Facebook about their company? What if those posts are critical?

The National Labor Relations Board (NLRB) recently shed some light on these social media questions but the answer is still largely: it depends. The determining factor is whether the employee is discussing workplace conditions, which is a protected activity, or ranting, which is not.

A couple of cases heard by the NLRB illustrate the distinctions.

The determining factor is whether the employee is discussing workplace conditions, which is a protected activity, or ranting, which is not.

When a caseworker at the non-profit Hispanics United of Buffalo threatened to tell her boss that other employees weren’t doing their jobs, an angry colleague took to Facebook. Several other employees responded, posting angry, expletive-laden messages. The employee who started the discussion complained to management that she was being harassed by her colleagues. They were terminated, but the NLRB ruled that these firings were unjustified because the employees were taking the first steps toward responding to management.

For employees, this is good news. They are free to express opinions, whether accurate or not, in public discussions about workplace conditions without fear of retribution. As a result, many workers will get their jobs back.

This is good news for employers as well. Workers can’t just post any comment they want, whenever they want. Ranting on social media — without engaging in discussion with other employees about workplace issues — is not protected and may be cause for discipline or termination.

An event at The Arizona Star Daily illustrates where employee protections end. Frustrated by the lack of news, a police reporter posted the following comments on Twitter: “What?!?!?! No overnight homicide… You’re slacking, Tucson.” The reporter was fired and the NLRB upheld the termination, stating the Twitter posts were offensive and had nothing to do with the reporter’s working conditions.

My advice for employers is to accept that social media is not a fad. It’s only going to increase so they need to face it head on.

It’s a good idea for companies to have formalized guidelines or ground rules for how employees may use social media. For example, employers might prohibit employees from posting anything negative about competitors on social media and they may expressly prohibit ranting. After all, negative tweets about a competitor could open the company up to a lawsuit. And there’s no benefit to allowing an employee to bitterly and repeatedly complain about a boss they find annoying. As companies develop social media policies, they should focus on specific rather than broad prohibitions.

It’s also a good idea to at least attempt to monitor what is being said about the company on social media. While it’s impossible to monitor everything — many people restrict who can access their social media sites — it could be very useful feedback. If enough workers are complaining about the same supervisor, it’s probably a personnel issue that needs attention. Having a system in place to address those comments is helpful.

My advice for employers is to accept that social media is not a fad. It’s only going to increase so they need to face it head on. Let employees know what is acceptable and what is not, as well as what uses could result in termination or discipline.

While the NLRB opinions are generous for employees, there is no hard and fast rule that workers can do anything they want on social media related to their employers without consequences. Consider what makes sense within a company’s culture and then set some ground rules.


Tags: Law

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  • Pam Ressler

    Thanks for an important discussion on social media in the workplace. With the ubiquitous nature of smartphones and mobile devices social media seamlessly travels with the individual into all aspects of their lives, so it is essential that guidelines and policies are stated and understood by employees and employers. I have recently authored an online course for nurse managers on how to use social media effectively and appropriately in health care. I see great potential for the social media use in connection, collaboration, aggregation and communication.

  • Barry Kort

    Instead of ranting in a way that identifies specific individuals (or companies), a better option is to engage in some creative writing about an imaginary workplace staffed with imaginary characters. This is what Scott Adams did with his wildly successful Dilbert comic strip.

    Fiction is a great scam. You get to tell the truth while pretending to lie.